Doug Kendall, Tom Donnely — Lincoln, the Supreme Court, and the Reconstruction Revolution


Could a film alter the course of Supreme Court history? If the justices take a trip to their local movie theaters to see “Lincoln,” Steven Spielberg’s Academy Award-nominated film just might. Rather than focusing mainly on the famous battles, famous generals, or even the Civil War itself, Lincoln showcases the hard-fought struggle over the Thirteenth Amendment and highlights some of the forgotten leaders who led the ratification fight. It is this focus on an essential — and essentially lost — part of our constitutional history that makes Spielberg’s film so perfectly timed and potentially significant.

While “Lincoln” ends with its namesake’s tragic demise, Reconstruction’s forgotten heroes — Thaddeus Stevens, Charles Sumner and John Bingham, among others — went on to add two more historic amendments to our Constitution, Amendments that apply directly to each of the civil rights issues facing the court this term.

As the court prepares to rule on marriage equality, affirmative action and voting rights, the justices should follow Spielberg’s lead and honor our Reconstruction Founders and the soaring guarantees that they enshrined in our nation’s charter.

Let’s begin with the marriage equality cases. In enacting the Fourteenth Amendment, the Reconstruction Framers chose sweeping, universal language: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” In so doing, they rejected other proposed language that would have limited the amendment to combating racial discrimination alone, choosing instead to incorporate into our Constitution the broad promise of the Declaration of Independence that “all men are created equal.” Indeed, the Fourteenth Amendment perfects the Declaration by universalizing it — substituting the word “persons” for Jefferson’s “men.” As such, the amendment provides all persons — whether black or white, woman or man, gay or straight — with a constitutional sword to combat invidious discrimination. That guarantee is the constitutional foundation for marriage equality.

Turning next to affirmative action, in Fisher v. University of Texas, a white student is challenging UT-Austin’s admissions policy, arguing that it violates the Equal Protection Clause because it allows the university to take race into account, as one factor among many, in making admissions decisions. However, the Reconstruction Framers — those who wrote and helped to ratify the very clause that the challengers rely upon in Fisher — themselves enacted race-conscious measures, including efforts to ensure equality of educational opportunity for African-Americans. For instance, during the late 1860s, the federal government provided land and money for more than a dozen colleges and universities that primarily served African-American students. Therefore, the Reconstruction generation, like UT-Austin, recognized that in certain contexts race-conscious measures were necessary to ensure that equal opportunities were available to all.

Finally, turning to voting rights, Shelby County v. Holder involves a challenge to the preclearance requirement of the Voting Rights Act — a critical provision reauthorized by a near-unanimous Congress in 2006 that requires states with a history of racial discrimination in voting to get “preclearance” by the federal government of any change in voting. In Shelby County, the challengers argue that this requirement is an affront to state sovereignty.

However, the Fifteenth Amendment gave Congress — not the courts, and certainly not the states — authority to enact legislation necessary to end racial discrimination in state elections. Indeed, the text of the Amendment itself provides in sweeping terms that “Congress shall have the power to enforce” its provisions “by appropriate legislation.” When Congress acts to prevent racial discrimination in voting, such measures are entitled to great deference.

“Lincoln,” by casting Spielberg’s unparalleled movie-making magic on the fight over the Thirteenth Amendment, could be the beginning of a profoundly necessary change in our understanding of constitutional history. Americans tend to treat our 1787 Founding Fathers as demigods and their words as constitutional gospel. These Founders should be revered for drafting the greatest governing charter in world history.

But it’s also true that they wrote slavery into that charter, and it was left to our Reconstruction Founders to write it out with the Thirteenth Amendment. More than that, with the Fourteenth Amendment, those same Reconstruction Founders wrote the key passage of Jefferson’s Declaration into our Constitution and perfected it by making it universal.

Finally, by ratifying the Fifteenth Amendment, they launched our most sustained project of constitutional improvement: the series of Amendments that expanded the franchise and established the right to vote as the most fundamental of all our constitutional guarantees.

“Lincoln“‘s a great start, but a movie can only take America so far. Only the Supreme Court can truly give our Reconstruction Founders, and the Amendments that they produced, their appropriate due, and rarely have so many important cases been lined up to present ripe opportunities for the Court to do so. The stakes are high, and the world is watching.

Doug Kendall is president and founder of Constitutional Accountability Center, a think tank, public interest law firm and action center in Washington, where Tom Donnelly is counsel and message director. Readers may wrote to them at Constitutional Accountability Center, 1200 18th Street NW, Suite 501, Washington, D.C. 20036; website: www.theusconstitution.org.